Democracy now

Constitution-making is one aspect of a nation’s public affairs: it is a process by which the population is able to participate in determining its political status and in influencing its own economic, social and cultural development. The constitution-making process should involve serious discussion of conflicts, interests, preferences, and needs. It should be accompanied by massive efforts to involve the public before, during and after the drafting stage. Otherwise all theoretical and legal justification for the legitimacy of the constitution could be undermined. Experience shows that where a constitution is produced in haste with minimal homework and insufficient effort to build consensuses among society, the resulting constitution often turns out to be more a problem than a solution.
Our major political forces have suddenly forged an agreement over several contentious issues in the current constitution drafting process. This suggests that there may now be a reasonable chance of the new constitution being promulgated on time. However, the agreement is notwithout contention. People from different segments of our society are demanding more by way of identity, powers and rights. Most importantly, the Constituent Assembly’s deadline is only days away, and the final draft of the constitution has not yet been prepared. Several questions must be asked: Where is the opportunity for the people to have their say? Will the constitution not lack legitimacy if made in such haste? How democratic will the constitution be? Can it survive for long?
In today’s world, actual participation in the constitution making process has become one criterion of the constitution’s legitimacy, and this is promoted now as both a right and a necessity. The effective participation of those affected by the decision-making processes and their right to have a say are vital. Whereas the functioning of the constitution lies at the heart of the political establishment, its making can no longer be confined exclusively to the domain of high politics and to negotiations among elites who may draft the text behind closed doors. The constitution is not a thing to be decided upon by a few politicians in a hotel room. However, that is precisely what appears to be happening in our context. The deadline for the Assembly is fast approaching, but where is the time to be allocated for public debate of the constitution’s final draft? Should we not be given time to debate and discuss its content? Is it not our democratic right actually to participate in such a process? At present it seems highly likely that therewill be insufficient time even for the lawmakers within the Assembly itself to discuss the articles and sub-articles.
Decisions are normally based on reason and transparency, but in our scenario there is a significant disparity in political and social power between that of the elite and that of ordinary citizens. South Africans were encouraged to participate in the constitution-making process with the slogan: ‘you have made your mark: now have your say’. The public made two million submissions over the final draft. Their comments and suggestions were widely debated and taken seriously before the final constitution was drafted. It gave the general public a sense of belonging, a sense of participation, and a sense of writing their own future. Where here is the right of our people to be involved the process and to say what they think?
A legitimate constitution cannot be written with such haste that it breaches the requirements of the democratic process. Our new constitution should be the embodiment of the hopes and expectations of our people: it should not merely define political powers but reflect thevery soul of our society. Its drafting must follow certain principles and procedures, and it must be regarded as infinitely more significant than ‘black letter law’. Even in passing ordinary laws, the state has to follow certain rules, principles and procedures: producing a constitution is infinitely more demanding. Our own new constitution is going to impactthe fate of many generations to come. In view of that, are we taking the matter seriously enough? Should our citizens not be allowed to comment on their future rights before the constitution is in any way finalised?
Recently there have been dissenting voices from different segments of our society over the recent agreement reached between the major political parties. Should all such demands not be addressed now throughthe political process? If the new constitution is to fulfil its purpose in setting a tone and establishing an identity for our nation, it must address such demands in a manner that maintains social harmony and does not engender anger, suspicion, and resentment. We must ignore no one. Constitution making inevitably involves a tussle over the distribution, redistribution, and sharing of powers, but our resulting future constitution must become the milestone, the peacemaker and the tool that brings our war-torn society together: it must not become atool that leads to even further conflict. We need not rush regarding this issue. We may need much more public debate and dialogue among the different segments of our society. In final form our federal constitution must address the identity of the entire population so that a confident nation can look forward to a stable future with complete internal harmony. Can the new constitution really offer our country a safe exit from the on-going crisis? Sadly, on the basis of current knowledge there is doubt.
It is time to end the culture of last minute agreements by politicians when deciding national issues. It has happened often before and must not be repeated now. Technically qualified elite and a few politicians must not be allowed to regard constitution making as no more than the legal and expert drafting of a contract. Its conceptualisation and implementation should develop into an open-ended conversation throughout the political community. The functioning of democracy demands continuous discussion that addresses all dissenting voices. Thepeople have every right to know what is proposed and how they can challenge those proposals. The final constitution must be recognised as people-owned. Otherwise the people will challenge its legitimacy and authority from the very outset.
Basnet,an advocate who holds a PhD from Lancaster University is a researcher in International Human Rights Lawhttp://www.ekantipur.com/2012/05/18/opinion/democracy-now/354122.html

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